Facts: Romo-Chavez’s car was stopped at
the border. Id. at *1. After his
initial explanation for his visit to the U.S. raised suspicions, the car was
searched and meth discovered. Id.
Romo-Chavez was interviewed by one agent, with a border patrol agent
translating. Id. Romo-Chavez later
explained he didn’t understand the border patrol agent’s Spanish. Id. at *2. At trial, Romo-Chavez argued
that he didn’t know the meth was in the car’s secret compartments. Id. Romo-Chavez also argued that items such
as a cell phone taken from his car – and lost – would have corroborated his
story explaining why he was visiting the States. Id. The border agent’s recitation of the translated interview was admitted
against the defendant. Id. at *2-*3. Romo-Chavez was convicted. Id. at *2.

Issue(s): “We must decide whether the
Confrontation Clause or the Federal Rules of Evidence prohibit the government
from introducing at trial a defendant’s admissions to a police officer because
the translator who facilitated them, while conversationally fluent, would not
qualify as a court interpreter.” Id.
at *1.

Held: “Taking
the [United States v. Garcia, 16 F.3d
341, 342 (9th Cir. 1994)] factors together, the district court did not err in
concluding that [the border patrol agent] served merely as a language conduit
for Romo-Chavez.” Id. at *4. The
Sixth Amendment right to be confronted with the witnesses against him “is not
implicated here because the [border patrol agent’] translations are properly
construed as Romo-Chavez’s own statements.” Id.
at *4.

Of Note: In a compelling concurrence, Judge
Berzon questions the fluency of the agent who translated the interview. Id. at *5-*7 ("[T]his type of verb tense mistake is one that someone with a good grasp of Spanish should not be making.") She also continues to sound
the Confrontation Clause bell, correctly warning that the Ninth’s dusty old Nazemian case is inconsistent with the
Supreme’s new Confrontation Clause line. Id.
at *8; see alsoUnited States v. Orm Hieng, 2012 WL 1655934, *11 (9th Cir. May 11,2012)(Berzon, J., concurring) (“I believe the continued vitality of Nazemian after Crawford is an issue that merits en banc review in an appropriate case.”) The concurrence is a very
good read – an interesting mixture of scholarly analysis and practical
complaint. See id. at *9 (wondering
why the Department of Homeland Security can’t have competent interpreters
available at the border or – better yet – record interviews so they can be
later translated by qualified interpreters).

How to
Use: Preserve this issue: the government’s
dodge of the hearsay bar by offering an interpreter’s account of a defendant’s
statement as an “admission.”

Does Nazemian’s tolerance of interpreter
statements survive Crawford? Judge Wallace
thought so, this month in Hieng, 2012 WL 1655934, at *7 – but as noted
above, Judge Berzon isn’t convinced. This is an issue ripe for en banc review – help the Ninth get it
right by preserving it and taking it up.

For
Further Reading: The Ninth is one active-judge bigger
this week, after the confirmation of Judge Paul Watford. See Press Release here.
Judge Watford, an Orange County CA native, is a former CD Cal AUSA.

Keep an eye
out for the eventual panel of CJ Kozinski, Judge Ikuta, and Judge Watford: the
latter two both clerked for the Chief. See blog entry here. Would be fascinating to be a fly on the wall of that post-argument conference -- two former clerks weighing-in on an outcome with their former boss (but now weighing-in with a vote!)